Judge Says Ex-husband Of Lemak Must Talk

High Court To Review Unprecedented Ruling

The Illinois Supreme Court is being brought into the Marilyn Lemak capital murder case before the trial even begins.

A DuPage County judge said Thursday her ex-husband must be deposed by Lemak's defense team, a practice that is unheard of in criminal cases in the state.

Judge George Bakalis ruled that the deposition of Dr. David Lemak should proceed, but he said the interview cannot take place within the next 30 days. The judge ordered the stay to give prosecutors a chance to seek a supervisory ruling from the state's highest court, acknowledging that compelling a witness to be deposed before a criminal trial is new legal territory in Illinois.

DuPage County State's Atty. Joseph Birkett promised to quickly file a petition seeking a supervisory order from the Supreme Court.

"How could we not when the judge basically said, `Do it,'" Birkett said after the proceedings.

He added that, if the high court upholds Bakalis' decision, he might use the deposition tactic to attempt to force statements from Marilyn Lemak's "family or friends," who have thus far refused to speak to police or prosecutors.

In most states, including Illinois, the type of pretrial depositions commonplace in civil trials are not permitted in criminal matters.

Marilyn Lemak's attorneys argue that the unusual maneuver is necessary as they mount an insanity defense, because only David Lemak can provide key insight into his ex-wife's mental state in the months and years before she allegedly drugged and smothered her three small children in their Naperville home.

Her lawyers on Thursday disclosed that she had attempted suicide at some time before the triple homicide.

She again tried to take her own life on the day of the killings. They did not provide details on the date or circumstances surrounding the first attempt, but they said David Lemak is the only person who can address the episode.

John Donahue, the lead attorney for Marilyn Lemak, said outside the courtroom Thursday that the deposition of her ex-husband is of "paramount importance" as he prepares his case.

"The state is seeking to execute her," Donahue said. "We need information that [David Lemak] would be privy to."

Police and prosecutors allege Marilyn Lemak killed her children in March 1999 in a vindictive act against her husband because their marriage was crumbling and he was beginning to date another woman. Donahue has contended Lemak suffers from a major depressive disorder, "perhaps with psychotic features," and was legally insane.

In making his ruling, Bakalis said he realizes his decision is supported only by a broad interpretation of a minimal amount of Illinois case law.

The judge said he also understands David Lemak is a victim and has a right to his privacy, but Bakalis said that is outweighed by the gravity of a capital case.

"The state wants the defendant condemned to death," Bakalis said. "The defense wants Dr. Lemak to give two hours of his time."

Bakalis has previously ruled that the deposition would take place within two hours in the DuPage County Judicial Center with prosecutors in the room. The questioning will be limited to David Lemak's observations of the defendant toward her children and her mental condition, Bakalis said.

"I continue to believe that David Lemak does have critical information that is not available elsewhere," he said. "This type of information, in my mind, should be available to the defense."

Bakalis said he took into consideration that a committee of 17 judges from around the state has been appointed by the Illinois Supreme Court to study the death penalty. He said there is no clear legal precedent for his decision but said the new committee's work will include a review of the rules for capital cases.

Birkett said he is aware that the panel has recommended that pretrial depositions of some witnesses may be warranted, but the state's attorney said he believes the allowance would be for reluctant witnesses, jailhouse informants and the like. David Lemak, a victim, will remain out of bounds, Birkett said.

Donahue disagreed, saying he believes there is momentum in the state for changing the way death penalty cases are managed. He said there has been a "change of attitude" on the state's highest court and said he is confident he will be allowed to proceed and depose David Lemak, who is expected to testify at his ex-wife's trial.

Birkett and Donahue said they expect the matter to be expedited and that an eventual trial will be delayed by only a few months at most. Donahue said he remains hopeful the case will go to trial before the end of the year.